ASA Says DHS Misrepresents Costs of
Immigration Rule to Employers

In comments submitted April 25, 2008, the American Subcontractors Association, Inc., (ASA) told the U.S. Department of Homeland Security (DHS) that the agency’s latest proposal to transform employers into enforcers of federal immigration law grossly misrepresents the costs and burdens on employers. The Supplemental Proposed Rule (SPR) on Safe-Harbor Procedures for Employers Who Receive a No-Match Letter not only understates the costs of compliance and the time employers would have to invest, ASA said, but it also “is being promulgated in violation of the Paperwork Reduction Act (PRA).”

DHS published the SPR on March 26 in the Federal Register to address the October 2007 findings of a U.S. District Court, which prohibited DHS’ initial “no-match rule” from taking effect because the agency: (1) erred in issuing the rule by not providing a reasoned analysis justifying the change in policy; (2) overstepped its authority by interpreting anti-discrimination laws; and (3) violated the Regulatory Flexibility Act (RFA) by not providing an economic analysis of the rule’s impact on small entities. In its comments, ASA said that DHS’ treatment of these issues in the SPR was cursory: “The SPR does the bare minimum required to remove the legal challenge preventing the initial proposed rule from taking effect. None of the concerns expressed by the business community have been addressed nor has DHS supplied a reasoned justification for the change in policy.”

While DHS included an economic analysis with the SPR that was not included with the initial no-match rule, ASA argued that the analysis misrepresents the rule’s impact:

“The costs outlined in the Initial Regulatory Flexibility Analysis (IRFA) are staggering. They clearly show that Secretary Chertoff’s certification that the rule would not, ‘impose any new or additional costs on the employer’ and ‘would not result in an annual effect on the economy of $100 million or more,’ are false.”

The U.S. Chamber of Commerce published a study of the IRFA that found, using DHS’ own numbers, that implementation of the no-match rule would cost U.S. employers approximately $1 billion annually.

ASA also argued that the no-match rule violates the Paperwork Reduction Act (PRA). The PRA requires agencies that promulgate rules that impose new information collection burdens to first obtain approval from the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB), which DHS did not do. "[T]he rule clearly imposes new information collection burdens on employers and employees,” said ASA. “Employers must keep explicit documentation of their work authorization efforts and employees who receive no-match letters would be required to provide additional documentation to the SSA.”

“That sounds an awful lot like information collection to subcontractors,” said ASA Director of Government Relations Freeman Smith. To read ASA’s comments, visit the ASA Federal Advocacy section of the ASA Web site (www.asaonline.com).

Under the no-match rule, an employer would have to follow certain steps after receiving either a letter from the Social Security Administration indicating that an employee’s name does not match the Social Security number on file, or a notice of fraudulent documents from DHS. While DHS denies that the no-match rule represents a change in policy, the rule would replace the current system of verifying documents and completing I-9 forms with a series of steps involving new communications and requirements for employers and employees. They include:

• Checking for clerical errors after receiving a no-match notice, and confirming any clerical corrections with SSA or DHS within 30 calendar days.
  

• Sending employees who are the subject of a no-match letter to the local SSA office and then following up with DHS or SSA to ensure a match if the problem is not caused by a clerical error. The employer must maintain a record of any such verification. 

• Completing a new I-9 with a new SSN and a photo ID within 93 calendar days if the no-match is neither clerical nor corrected by the employee. The employer would have to terminate the employee if this step did not resolve the no-match.

Founded in 1966, ASA amplifies the voice of, and leads, trade contractors to improve the business environment for the construction industry and to serve as a steward for the community. ASA’s vision is to be the united voice dedicated to improving the business environment in the construction industry. The ideals and beliefs of ASA are ethical and equitable business practices, quality construction, a safe and healthy work environment, and integrity and membership diversity.

American Subcontractors Association
1004 Duke St.
Alexandria, VA 22314

Contact: David Mendes
(703) 684-3450, Ext. 1335
dmendes@asa-hq.com
www.asaonline.com